Wednesday, March 29, 2017

Judge Watson is a courageous American hero, and civil rights icon in the making.

We will see if 45 learns from this, or just buries his orange head in the sand.

The Supremes will see Amendment One the way Judge Watson does, of that I am very confident. Here is a bit of the 24 page PDF ruling, tonight -- just filed:

. . . .Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971), provides the benchmark for evaluating whether governmental action is consistent with or at odds with the Establishment Clause. According to Lemon, government action (1) must have a primary secular purpose, (2) may not have the principal effect of advancing or inhibiting religion, and (3) may not foster excessive entanglement with religion. Id. “Failure to satisfy any one of the three prongs of the Lemon test is sufficient to invalidate the challenged law or practice.” Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1076–77 (9th Cir. 2010). . . .

The Court determined in its TRO that the preliminary evidence demonstrates the Executive Order’s failure to satisfy Lemon’s first test. See TRO 33–36. The Court will not repeat that discussion here. As no new evidence contradicting the purpose identified by the Court has been submitted by the parties since the issuance of the March 15, 2017 TRO, there is no reason to disturb the Court’s prior determination.

Instead, the Federal Defendants take a different tack. They once more urge the Court not to look beyond the four corners of the Executive Order. According to the Government, the Court must afford the President deference in the national security context and should not “‘look behind the exercise of [the President’s] discretion’ taken ‘on the basis of a facially legitimate and bona fide reason.’” Govt. Mem. in Opp’n to Mot. for TRO 42–43 (quoting Kliendienst v. Mandel, 408 U.S. 753, 770 (1972)), ECF No. 145. No binding authority, however, has decreed that Establishment Clause jurisprudence ends at the Executive’s door. In fact, every court that has considered whether to apply the Establishment Clause to either the Executive Order or its predecessor (regardless of the ultimate outcome) has done so.

Significantly, this Court is constrained by the binding precedent and guidance offered in Washington. There, citing Lemon, the Ninth Circuit clearly indicated that the Executive Order is subject to the very type of secular purpose review conducted by this Court in considering the TRO. Washington, 847 F.3d at 1167– 68; id. at 1162 (stating that Mandel does not apply to the “promulgation of sweeping immigration policy” at the “highest levels of the political branches”).

The Federal Defendants’ arguments, advanced from the very inception of this action, make sense from this perspective -- where the “historical context and ‘the specific sequence of events leading up to’” the adoption of the challenged Executive Order are as full of religious animus, invective, and obvious pretext as is the record here, it is no wonder that the Government urges the Court to altogether ignore that history and context. See McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 862 (2005). The Court, however, declines to do so. . . . (“It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”). . . .

The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has. The Supreme Court and this Circuit both dictate otherwise, and that is the law this Court is bound to follow. . . .

Well-put. This is clearly headed to the Supremes -- unless Mr. Trump accepts that he has lost -- completely. And the Constitution means what it says.

I hesitate to mention it, for fear of encouraging any idiot out there -- but the able Judge Watson is, in my estimation a civil rights hero, now. It seems he's been receiving death threats, since his first ruling on the TRO. He now has a large detail of 24-hour duty US Marshals, with him at all times.

Welcome to the bad old 1950s, courtesy of some of Mr. Trump's more hateful constituents. Ugly -- but real freedom comes from courage -- and is often. . . hard.

Post Script: I've temporarily edited the masthead above, to honor Dr. Eyring. He was born in the then-Colonia Juárez, Chihuahua, Mexico (1901); with his family, he became a refugee/immigrant, via a Texas border crossing (1912), later became a citizen (1922) and was, at various times in his prodigious life, also disfavored -- on account of his religion.

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